Amending Theory: Epistemology and Constitutional Populism

Judicial review has a rich history of debate surrounding its effectiveness, necessity, and legitimacy. Today, the Supreme Court is as controversial as ever, given the recent developments on affirmative action and abortion rights. In Taking the Constitution Away from the Courts, Mark Tushnet argues for the abolishment of judicial review and provides a novel framework through which to understand the role the people hold in interpreting the supreme law of the land. However, Tushnet’s blurry duality of thick and thin Constitution opens an epistemological can of worms that completely undermines his project. This article will defend Mark Tushnet’s argument against judicial review by amending his theory of a dual Constitution. It will first briefly explain Tushnet’s argument. It will then explain the philosophical issues with dividing the Constitution. Finally, it will discuss the means through which Tushnet can address these flaws by tackling the blurriness in his duality head-on.

1. Introduction

Polling shows that the judicial branch, headed by the Supreme Court, is currently the most favorable of the three primary branches of government of the United States among the American public. However, its popularity is waning (Jones 2023a). In fact, since the recent overturning of the landmark Roe v. Wade case, the Supreme Court is now further from its average popularity than it ever has been (Jones 2023b). In the current landscape, Mark Tushnet’s seminal work Taking the Constitution Away from the Courts appears strikingly prescient, as Democrats are especially dissatisfied with the consequences of judicial review. However, Tushnet’s theory regarding the abolishment of judicial review, constitutional populism, faces its own challenges. These challenges, epistemic in nature, stem from the dual Constitution he presents within his book. This article will defend Mark Tushnet’s argument against judicial review from a crippling epistemological issue by amending (and further clarifying) his dual theory of the Constitution.

First, this article will provide a brief explanation of Tushnet’s theory. Constitutional populism is as it sounds: populism as a method for constitutional interpretation. Tushnet seeks to assign the responsibility of constitutional law to the public rather than to the Justices of the Supreme Court (Tushnet 2000). In policy terms, he aims to eliminate judicial review. Tushnet would rather the public decide on the constitutionality of laws or actions by the state. The average American citizen obviously does not have the legal background that the typical Court Justice has, but, according to Tushnet, they do share a commitment to preserving the founding ideals of their nation (Tushnet 2000, 14).

To Tushnet, these ideals are above all else the preservation of the universal human rights of the population (Tushnet 2000, 181). These universal rights, and the means to protect them, are laid out in what Tushnet calls the thin Constitution. This thin Constitution is best understood as what it is not: undiscussed, undebatable, and clear in text (Tushnet 2000, 9-11). The thin Constitution is made up of all those constitutional provisions that are harshly contested (especially those concerning individual rights), highly discussed, and with text that insists on value-laden interpretation.^[1] Many of the original Amendments could be classified as such, the First and Second being the most famous examples. Tushnet believes that the thin Constitution is what truly unites the American public. Thus, they are already capable of interpreting it and deciding how it applies to lawmaking and state action (Tushnet 2000, 12-13). If this is the case, judicial review only serves to deprive the people of this power.

However, Tushnet does not only speak of the thin Constitution. Tushnet believes in a dualism within the Constitution. There is a thick Constitution to complement his thin. The thick Constitution can be understood as the plain, rarely debated text of the Constitution which largely exists to organize the government (Tushnet 2000, 9-11). The Emoluments Clause, which prevents Congress from raising the president’s salary during their term, would be a clear example. That is not to say that the more structuralist provisions of the Constitution are not important: Tushnet concedes that they are. They are not, however, inherently linked to the founding ideals of the nation.

This article will next go over the trouble that comes in attempting to draw a line between the thick and thin Constitution. Some extreme examples exist for each, but there are certainly some provisions that are not so black and white. This article will go into examples of such provisions, including a thorough discussion of the Supremacy Clause. This clause, and others like it, exemplify how the line between Tushnet’s constitutional components is often quite blurred.

Drawing that line is important to Tushnet’s case. The thick Constitution does not concern the founding principles of the nation and is thus not necessarily entrusted to the people. It is more akin to plain statutory text, which is entrusted to lawyers and legal scholars. Those with backgrounds in legal education will be epistemically superior in discussions of the law as opposed to legal laymen. If it can not be decided which parts of the Constitution belong to the people and which specifically belong to those with a legal education, it appears that legal scholars would be best fit to interpret the entire Constitution. These legal scholars would be epistemically qualified as both citizens of the country and as experts of the judicial system, whereas the public is only qualified in the former. Average citizens may make crucial errors in interpretation on provisions that are not so thin. A qualified body of justices would be less likely to make such errors. Thus, judicial review seems necessary.

This article will then argue that the existence of tension between the thick and thin Constitution is not enough to defeat Tushnet’s ideas, at least not entirely. Though it is true that gray areas exist pertaining to certain provisions (the aforementioned Supremacy Clause will be the prime example of this article), the existence of these gray areas warrants public attention. As mentioned before, public attention is at odds with anything that could be considered within the thick Constitution. American citizens can and should be the ultimate arbiters when it comes to which parts of the Constitution are up for interpretation before them. Thus, in-between provisions would belong to public interpretation. Tushnet’s theory is called constitutional populism. It rests on the people deciding how their Constitution must function. If tension between the thick and thin Constitution reveals itself on any given provision, the people can address that tension themselves. This article will conclude with a brief discussion of how the judicial system could still play a role in constitutional review. The justices of the Supreme Court do have invaluable legal knowledge that Congress could make use of. Further, opinions of the Court may be useful for the American public in cases of horizontal constitutional review.

2. Constitutional Populism Redux

Goals of Constitutional Populism

Mark Tushnet’s landmark book seeks to do exactly what its title espouses: take the Constitution away from the courts. He argues that “the public generally should participate in shaping constitutional law more directly and openly” (Tushnet 2000, 194). He views judicial review (constitutional review handled by the unelected Justices of the Supreme Court) as being antithetical to the notion espoused by American giants like Abraham Lincoln: that the nation, and its institutions, belong to the people of the nation. The people do, by indirect means, get some say in how their Constitution is interpreted. They vote for the President who appoints the justices of the Court.

However, lifelong terms and inconsistent blockages from the Senate make it hard for Americans to have any tangible say in what their Constitution means outside of certain crucial Presidential elections.^[2] The current system for citizen involvement can hardly be considered democratic.

This still does not quite explain what exactly constitutional populism is or how it operates. Tushnet describes it as “a law committed to the principle of universal human rights justifiable by reason in the service of self-government” (Tushnet 2000, 181). This conception plays off the founding ideals of the country within the Declaration of Independence. Universal human rights are implied by the discussion of “inalienable rights,” and of course the famous “all men are created equal.” Tushnet believes that the national character is defined by a commitment to this fundamental principle; thus, the people possess the capability to interpret a text designed around it.

How We Get There

The policy that backs constitutional populism, at least within Tushnet’s book, is straightforward. He argues that rather than the Supreme Court merely ceding their control via public statement or even through some overruling of Marbury v. Madison (the case that granted the power of judicial review to the Court) the Constitution would need to be amended to truly return the document back to the people. Tushnet claims that some amendment could be passed that places constitutional provisions outside of judicial jurisdiction (Tushnet 2000, 175). The theory seems to purport that the Supreme Court would now serve only as the highest appellate court. Congress would be left in charge of passing judgment on the constitutionality of laws. Tushnet is unconcerned by the possibility of rogue senators or representatives acting unconstitutionally. Rather, he believes that there are ways to render the founding document “self-enforcing.”

The Thin Constitution

Though his ideas regarding universal human rights certainly apply to the language of the Declaration, Tushnet needs to demonstrate the direct overlap within the text of the Constitution. This seems daunting, at first, because many of the provisions within the document are structural or orderly in nature. Critics might wonder how a text so like the often referred to legalese of statutes can be understood as anything resembling the sort of philosophical piece that Tushnet presents it as. He does have an answer, albeit a controversial one.

Tushnet divides the Constitution into two parts: the thin and thick Constitution. This section of the article will concern the former, with the following section tackling the latter. The distinction between these parts is not quite the hard line that Tushnet might hope it is, but that will be discussed later in this article.

The thin Constitution encompasses provisions that are thoroughly debated, often discussed, and/or are unclear in writing (Tushnet 2000, 10-14).^[3] Obviously, much of the archaic language of the Constitution is unclear by modern writing standards, but this refers to those provisions that feature particularly vague language or terms that are obviously open to interpretation. The Necessary and Proper Clause, which grants Congress the power to pass laws required for fulfilling its ultimate duties, immediately comes to mind. What is necessary or proper in the context of Congressional power is fundamentally a value-laden question. Debate over the meaning of necessary here is storied, to say the least (Gressman 2000).

This rigorous debate is what motivates another characteristic of the thin Constitution. Debate, here, not only refers to judicial debate but also to debate among the population. The hot topic of the Right to Privacy, for example, and what it means for the legality of abortion, has once again become a point of national contention following the controversial overturning of federal abortion rights in Dobbs v. Jackson Women’s Health Organization (Palosky 2024). Discussion around this topic has become massively politicized, whether the justices of the Supreme Court like it or not. The nation, and by extension the justices (Dobbs v. Jackson was not a unanimous ruling) are divided on the constitutionality of issues such as these. Tushnet argues that provisions subject to such debate and massive discourse fall within the thin Constitution’s purview.

What then is the purpose of this thin Constitution in Tushnet’s broader theory? He argues that constitutional populist law “vindicates” the thin Constitution (Tushnet 2000, 12). That is, the thin Constitution might be understood as those provisions that encompass this nation’s commitment to universal human rights. As mentioned before, to Tushnet, this thin Constitution is what America’s national character is truly based on. The thin Constitution is highly debated and unclear because it concerns fundamentally political ideas of how this country ought to operate. Thus, constitutional populist law liberates the debate and interpretation of these provisions from the Supreme Court and returns it to its rightful owners: the people.

The Thick Constitution

The thick Constitution contrasts with the thin in that its provisions are not highly debated or discussed by the public or justices. Further, they are not usually touched by justices in Court rulings as changes to them often end up ignored or lead to broader unintended consequences. Article Two, Section One is a good example of this. There is no debate over the notion that the Vice President will be elected at the same time as the President so that they preside over the same term. The text is relatively clear: there are no value terms in the section that cover the way Presidential terms function. That does not mean this section is unimportant. The more structural provisions of the thick Constitution are necessary for the organization and operation of the government. However, they can hardly be understood as having anything to do with what Tushnet believes to be the national character.

The thick Constitution is much more akin to plain statutory text than the thin is. Where the thin concerns the values of the people reading (and writing) it, the thick Constitution is plain, clear, and closer to traditional legal literature. The line that creates this dualism, however, may not be so defined upon further examination.

3. Tension in Duality

Though it would be best for Tushnet’s argument to only examine the most clearly thick and thin provisions within the Constitution, doing so ignores the reality of the founding document. Key sections of the text can easily be interpreted as either, or perhaps both. A clause might be clear, in that it might lack obviously value-laden language, yet be debated nonetheless. It might be discussed often in some circles, yet hardly argued about in others. Further, what exact issues concern universal human rights is certainly up for debate. The relativity of the terms by which Tushnet defines his thin Constitution becomes ever apparent when going into the weeds of the more structural sections of the document.

The Supremacy Clause

Article VI, Clause 2, better known as the ‘Supremacy Clause,’ elucidates these ideas nicely. The clause states that “laws… made in Pursuance [of the Constitution]… shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The text is relatively clear, at least when compared with the text within the Second Amendment, for example. Though a bit archaic in its prose, the language is mostly dry. Nothing within its wording is as necessarily reliant on value-based interpretation as the Fourteenth Amendment is with its restrictions on infringements of “privileges” or “liberties” of U.S. citizens. Readers of this article would be hard-pressed to find any interest in the Supremacy Clause outside of niche legal circles. By all accounts, it seems like this structural provision of the Constitution is best understood as part of the thick Constitution.

And yet, it is not so simple. The Supremacy Clause is foundational for establishing federalism in the United States. Without such a clause, states are theoretically their own legal entities, beholden not to some federal body of law, but to pre-established territorial law and common law within said states. How, then, is the First Amendment meant to safeguard the universal right of expression of the public? How, legally, can it be ensured that “no soldier… be quartered… without consent of the Owner?” The Supremacy Clause is structural in nature, yet the federalist principle it upholds necessarily interacts with the founding ideals of the nation.

Though true, the Clause is hardly debated directly amongst the general public, it is tangentially related to a great number of political and legal questions that are. Professor Bradford Clark writes that “there is express textual basis for judicial review federal statutes alleged to exceed Congress’ enumerated powers” (Bradford 2003, 2-3). He argues that the Supremacy Clause is a necessary component of the legal framework that allows for the Court to check Congress, not just lower state courts, for having passed laws beyond the scope of their power. Professor Clark interprets the Clause as saying that only those laws made in “pursuance” of the Constitution are truly supreme. Thus, the Court must be willing to strike down Congressional legislation that goes beyond the Constitution’s scope. By this conception of it, the Supremacy Clause is often debated and discussed indirectly by the public. The Affordable Care Act has famously been scrutinized for its constitutionality, and Republicans broadly dislike the themes of the policy (Dalen, Waterbrook, and Alpert 2015). In this case, as in others, the power of the federal government is questioned. Power becomes a concern for the weary citizen, as concentrated power can threaten the universal human rights that Tushnet is so enthralled by. Thus, though the principle of federalism is typically reserved for the cold, structuralist parts of the Constitution, it can not be so easily divorced from the thin Constitution’s vibrant drama.

Creeping Thickness

As the thick Constitution can not be separated from the thin, neither can the thin escape the creep of the thick. Even extremely value-laden provisions such as the First Amendment can be viewed as being about the allocation of power more so than the safeguarding of universal human rights.

Professor Steven Gey argues that the First Amendment is better interpreted in a “structural-rights” manner than in an “individual-rights” manner” (Gey 2008). He notes that as there are many kinds of political speech that basically lack any social merit (or, further, damage the social fabric), it is hard to conceptualize how the First Amendment can protect the speech of Holocaust deniers if it is solely understood as protecting individual rights. If the First Amendment is meant to protect the rights of Jewish Americans, for example, to feel secure in expressing their religious beliefs, then it seems odd not to outlaw speech that decries the plights of their ancestors as falsified. Such claims may lead to violence against Jewish Americans. However, if the First Amendment is thought to be about preventing temporary, powerful majorities from deciding that which is true or couth, the legality of Holocaust denialism in the United States becomes clearer.

The amendments regarding individual liberties can be interpreted in similar ways. The Second Amendment can be regarded as functioning to ensure the right to own firearms. It can also be thought of as ensuring that violence is not monopolized (at least, not entirely) by the state. Otherwise, detractors of the Second Amendment cite the power afforded to marginalized communities to defend themselves, rather than needing to rely on the state to do it for them, as an example of the importance of understanding the right (Cottrol and Humphrey 1999, 6). The thin Constitution may be often discussed, but the structuralist underpinnings of much of what constitutes it rarely are. Thus, even the thinnest of provisions can have complicated relationships with the thick Constitution.

Epistemic Superiority

To go over anything close to the entirety of the theory published on epistemic superiority/inferiority would be far beyond the scope of this article and unnecessary. Rather, a brief example and list of criteria for determining it will suffice. Say, for example, that a mother and daughter are arguing over whether or not they can afford to go out to dinner. The daughter argues that because they have not gone out in the last three days, they should have the money saved up to be able to afford dining at Red Lobster tonight. Though the daughter might be very persuasive in her rhetoric, the mother is ultimately the financier of the household. The mother possesses knowledge about the money the family has available (as she is the one laboring for it) and understands how costly eating out can be. Further, she realizes that not eating out this one time is not the end of the world as her daughter makes it out to be. The mother is epistemically superior to the daughter in this instance.

The formal factors that make someone an epistemic superior over another are debatable but can be summarized as the data/evidence available to such a person, the time the person can spend on understanding the issue at hand, the cognitive ability of the person, the background knowledge already available to the person on the subject in question, and the circumstances of investigation that the person employs to understand the matter (Frances 2014). Most of these factors speak for themselves. Obviously, someone can hardly be considered an epistemic authority on a matter they have no data/evidence on or one that they lack any background knowledge on. The “circumstances of investigation” are the conditions present when examining the subject. Was the person distracted while attaining information of the subject, or while forming their belief on the topic? These both would contribute to them being less epistemically sound on the matter.

One need not be sound on all factors to be considered epistemically superior to another. Instead, these factors (and their weight in determining superiority) are contingent upon the topic in question. In the mother-and-daughter example from before, the mother might be on the phone with a relative while arguing with her daughter about going out. Her circumstances of investigation are relatively poor compared to her daughter’s, as she is not giving the proposition as much immediate thought as her daughter is. The mother is still, however, the epistemic authority on the matter. The daughter’s lack of knowledge of the family finances and young age prevents her from having as sound a judgment on the matter as her parent.

Finally, if two people of otherwise equal epistemic capability have even one instance in which one is more proficient than the other, that person should be considered epistemically superior. An example: assume that rather than the mother and daughter arguing about going out to dinner, it is instead the mother and father of the family. Both parents are intimately aware of the financial situation of the household. Both are old enough to properly evaluate the benefit of eating out versus cooking dinner at home. Yet, the mother has already spent a half hour in the car arguing with her daughter about going out, and the father is making his decision spontaneously as the mother and daughter get home. Even though on all other factors the mother and father are epistemic peers, the mother has had more time to consider the proposition. In this instance, she is the epistemic superior.

Authority Over the Thick and Thin Constitution

As discussed before, the thick Constitution is very similar to statutory law. With regard to legal matters, lawyers, legal scholars, and justices are epistemically superior to the layman.

The layman has received no legal education. They have not been trained to study the history of a statute’s application in the way lawyers have. They may lack the tools necessary to familiarize themselves with the relevant information on the statute in question (lawyers should have immediate access to databases/casebooks relevant to the legal question at hand). Further, practicing lawyers have demonstrated the necessary cognitive ability to interpret the law (in graduating from law school and passing a bar exam). Finally, the layman does not have the time to study the law in the way that a lawyer does. The layman must spend their time providing for themself, whereas the lawyer pays the bills by dedicating time to the law. The lawyer is plainly epistemically superior on typical legal writing. If the thick Constitution is so similar to such statutory text, the lawyer is clearly epistemically superior in that domain as well.

If the thin Constitution can possess a great many characteristics of the thick Constitution, and if there is not a clear way to separate the two, lawyers might be epistemically superior in its domain as well. After all, constitutional lawyers have dedicated their lives to studying the text, where the layman only has a relatively cursory knowledge on the subject. Tushnet argues in his book that a kind of “judicial overhang” exists within the States: that the mere existence of judicial review leads to people (and Congress, by extension) being less acquainted with the Constitution (Tushnet 2000, 57-65). Critics of Tushnet’s theory point out the obvious. The state of the country in the absence of judicial review can not be measured (Chemerinsky 2019). While it would strengthen Tushnet’s argument if it is assumed that the reason for the layman’s epistemic inferiority with regard to the Constitution is entirely a consequence of judicial review as an institution, this claim is only as convincing as one allows it to be. Lawyers are epistemically superior to laymen on the law. If the thick Constitution is hardly distinguishable from the law, it seems like they are epistemically superior over it as well. If the thin Constitution is not divorceable from the thick, then lawyers also reign supreme in that domain.

Superiority in the In-Between

The philosopher Hilary Putnam is probably most famous for his Twin-Earth hypothetical, which he employs to argue that the meaning of words exists outside of human psychology (Putnam 1973). In his argument, he argues for a “division of linguistic labor,” claiming that just because everyone uses a word like “gold”, they do not need the epistemic tools necessary for determining what gold actually is (Putnam 1973, 705).  That is to say, he feels it would be both unnecessary and inefficient to expect everyone to be able to articulate the true meaning of gold as opposed to pyrite, in the same way that it would be inefficient to expect the average person to be able to distinguish between the two metals. That does not mean that the words gold and pyrite mean the same thing. Instead, experts who can truly determine the difference can be expected to articulate the differences in meaning.

A simpler example might be Putnam’s elm and beech example. He notes that just because he personally can not tell the difference between the two trees does not mean, in fact, that there is not a difference. Putnam would be wrong if he were to call an elm a beech tree. He simply lacks the epistemic tools necessary to both make the distinction and know the true meaning of the words.

A legal layman lacks the epistemic tools necessary to make the distinction between the thick and thin Constitution. Though they may be capable of understanding the values of the thin, they can not be expected to understand the structural necessities of the thick. If the layman can not tell the difference between the two, is unaware of when they overlap, and, finally, lacks the epistemic tools to interpret one of those halves, then how can review of either the thick or thin Constitution be entrusted to that layman? They can still make use of their Constitution, semantically and functionally, as does Putnam with gold or beech trees, but they are not capable of properly analyzing it. In his article on how the Constitution ought to be considered hard law, Michael Moore posits that, ultimately, the Constitution being so like “ordinary law” is what justifies judicial review (Moore 1989). He is correct. The layman and lawyer are, on average, epistemically peers on matters political, but lawyers are superior on matters legal. Thus, constitutional review must be entrusted to the highest Court in the land, the alleged ultimate experts on constitutionality. Tushnet’s constitutional populism is seemingly dismantled.

4. The Necessary Response

To maintain constitutional populist law in the face of the problems created by Tushnet’s duality, he needs to address the tension at the center of it directly. Rather than arguing that his two halves are distinct and that only the thin encompasses the national character, he instead needs to argue that the tension between the two is evidence of their need to belong to the people. He should be arguing that the debate over how the characteristics of the thin Constitution overlap with the thick Constitution, and vice versa, is a debate that belongs to the people. This section will explore this possible response and provide some changes to the policy that Tushnet provides that better works with this more refined theory.

On Public Debate

As stated before, those provisions that are hotly discussed/debated by the public should be considered part of the thin Constitution. The nature of the argument in question is hardly material. Rather, the public’s interest in the topic is what lends it its thinness. Thus, even though a provision’s status as either part of the thick or thin Constitution may be questionable, the public’s interest implies that it ought to be considered part of the thin.

Rather than treating the thick Constitution as something that must be set in stone (that what constitutes it must be decided at some arbitrary earlier point), it should rather be treated as a set of structural guidelines that can be claimed by the people based on their needs. Though legal experts might possess epistemic tools that aid them in interpreting the thick Constitution, thinness creeping into it does not then give them expertise over those thin values. This can be illustrated through the earlier structuralist interpretation of rights. Though yes, there are legal scholars that espouse the necessity of such an interpretation, this most certainly is not the common conception of the rights guaranteed within the Constitution (Calvert et al. 2018, Gey 2008). If it were to be presumed that the evidence of thickness within the thin Constitution could be invented by lawyers for the purpose of reconciling legal doctrine, then of course any provision within the Constitution could be considered thick. If some sizable portion of the public feels the need to argue over something typically considered part of the uninteresting thick Constitution, it seems that the public has changed its mind about how uninteresting that particular provision is. The people pluck the provision in question from the hands of legal scholars and place it into the domain of politics by virtue of making it politically relevant. Laws are necessarily downstream from politics after all.

Who Gets to Build the Ship?

To further expound on the point, it might help to reexamine some of the philosophy discussed earlier. Specifically, the combination of epistemic superiority and Putnam’s examples regarding experts and meaning.

Firstly, it should be noted that whether or not epistemic superiors are totally beyond questioning from inferiors is not a settled matter (Jager 2025). There are obvious times when such doubts would be necessary. A person without a driver’s license should not trust the capability of a drunk with one getting behind the wheel. If the Supreme Court sufficiently demonstrated itself to be compromised in its legal capabilities (perhaps by being shown to be overtly politically biased), it would be fair to suggest that their epistemic superiority on matters constitutional be reconsidered.

Secondly, what role experts play in the Putnam example from earlier is also up for debate. Putnam argues that words can be thought of as cooperative tools. He says that words should be thought of as more “steamship” than “screwdriver” (Putnam  1973, 706). Steamships can not be driven by a sole operator. Rather, they require the collaborative effort of a crew. Further, they are used by more than just crew members. The general public rides along within steamships. After discussing the epistemic superiority of lawyers, and their capability to distinguish thick from thin, it seems that they would be the crew members in this analogy. The American citizen would be relegated to a mere passenger in the journey to interpret the Constitution.

This conception of the analogy and how it maps to constitutional interpretation is faulty in multiple ways. The Constitution would be useless without some participation in understanding it from the American public. For instance, consider a candidate for Congress who intends to pass a law that entirely illegalizes firearm ownership. Clearly, this law would be in violation of the Second Amendment. On their own, this candidate has no power to do so. Even if they somehow win their Congressional seat, the rest of Congress would surely not aid them in their clearly unconstitutional crusade. Further, the Supreme Court would invalidate any law passed that so flagrantly violated the Bill of Rights. However, if a massive political movement behind the law came to fruition and enough political power was consolidated to not only pass the law but also amend the Constitution to overcome the Supreme Court’s inevitable review of it, the Bill of Rights protections would obviously be overcome. In this scenario, the Constitution guarantees very little protection of inalienable rights. This scenario has never occurred not because it can not happen, but because the people of this country are not interested in it happening. The political capital is not there to completely overturn the Second Amendment, or anything other amendment for that matter.

Now, to reexamine the steamship analogy. If tomorrow, the passengers on a steamship decide not to aid the crew members in the running of the steamship, nothing changes. The ship’s ability to transport cargo and passengers is unaffected by participation from the passengers. So long as the passengers do not violently revolt against the crew, the ship can operate with just participation from the crew. The Constitution does require participation from the passengers (the American people) to function. Inalienable rights are meaningless to a populace uninterested in preserving them. Thus, the American people can be considered as part of the crew in this steamship example. The interpretation of the Constitution is meaningless without a public that lives by and upholds it. The document and its amendments were not originally drafted exclusively by lawyers and legal scholars. Rather, they were produced by politicians: stand-ins for the American public. To pretend that it could function as intended (to secure the rights of the people and allow for the creation and functioning of a democratic government) without the participation of the public would be absurd. Thus, to pretend that said public is not part of the crew of experts would be just as ridiculous.

The New Role of the Court

The above defense does not entirely save Tushnet’s theory. In his book, he claims that the thick Constitution is better left untouched by the Supreme Court, as interpretations they provide regarding it often result in unforeseen negative consequences (Tushnet 2000, 9-11). If the Supreme Court should not address matters within the thick Constitution, and the American public only tangentially cares about it, how are matters regarding it meant to be solved? Further, if the Court does possess epistemic superiority on matters that the thick Constitution deals with, how can any other body but the Supreme Court be entrusted with interpreting it?

Tushnet has half-answers, at best. In discussing how legal bodies might handle lower-level governments or government agents (police officers, for example) blatantly violating constitutional principles, Tushnet claims that the courts could find certain actions to be “ultra vires,” or beyond the scope of the actor in question’s power (Tushnet 2000, 163-165). The astute reader will immediately recognize this as judicial review in everything but name. Scholars far more qualified than the author of this article certainly have (Chemerinsky 2019, 1433). Whether or not Tushnet’s “ultra vires” test would even apply to horizontal review (that is, whether or not the courts could invoke it in response to Congress) is not touched on within his book. None of this addresses the thick Constitution directly, but one can imagine that Tushnet intends for it to. If Congress tried to raise the presidential salary during a president’s term, violating the Emoluments Clause, for example, Tushnet would likely argue that the Court could label Congress’s action as beyond its constitutional scope. Again, in this instance, it seems like Tushnet is very much in favor of the Supreme Court ruling on the constitutionality of laws, including those within the scope of the thick Constitution. How can any of this be reconciled within his broader theory?

There are modifications that can be made to his base ideas, but their effectiveness may be questionable. The Supreme Court could serve a dual role, as both an advisor for Congress as well as a canary in the coal mine for the general public. The Court could write briefs on the constitutionality of laws passed by the current session of Congress for the President, who could in turn opt to veto provisions that were off-base. The key to a system such as this would be that these briefs would be public so that the American public could be clued into obvious violations of their rights before they are enacted. A national referendum could be ordered by the Court on specific provisions of new legislation, allowing for the masses to check Congress before having to wait for an election year. The Court would possess more power as a guiding force for constitutional discussion than Tushnet might want under his constitutional populism, but this solution does a better job of addressing the epistemic gap that currently exists between the public and legal scholars on the Constitution. It would be beyond the scope of this article to provide an entirely new system for Congress and the Court that could amend Tushnet’s theory, but some change is clearly necessary for constitutional populism to remain plausible.

5. Conclusion

At its core, Taking the Constitution Away from the Courts is not really about solutions. Though Tushnet does provide some threadbare ideas on how judicial review might be abolished practically, the themes of the book get at something a bit more intangible. Constitutional populism is about being unafraid to call the founding document of your nation your own rather than treating it as the property of one unelected government entity. Yes, his dualism is vague.

True, his necessary assumption that the public can make rational decisions on its Constitution in the same way (or better) than the Court can is maybe a lofty ideal. It would be wise to remember that this nation was founded on the lofty ideals of would-be politicians, not on the doctrine of the legal elite.

The thick Constitution may contain some thinness (and vice versa), and that tension does raise questions about the viability of Tushnet’s argument. However, it does not defeat the theory entirely. The tension between the thick and thin Constitution says more about the thinness of the document as a whole than it does about the need for legal scholars to interpret it. Tushnet claims that his theory is legal in nature, rather than political or philosophical. It might be stronger if it were framed as the latter two subjects rather than the former. Perhaps further work could be done to demonstrate the Constitution as being fundamentally political, rather than legal, in nature. Developing constitutional populism in this way would alleviate concerns about the tension between the thick and thin Constitution, and may make the theory more convincing for the layman. The United States is a democracy. Politics are already entrusted to the whole public. Maybe the whole Constitution should be, too.

References

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